Ming Yu He v. Miller

Justice ALBIN,

dissenting.

The jury awarded plaintiff Ming Yu He $1,000,000 in pain-and-suffering damages for permanent and disabling injuries caused in a motor-vehicle collision and awarded her husband $100,000 on his loss-of-consortium claim.1 The three-person majority now reverses the unanimous ruling of the Appellate Division upholding those awards and reinstates the trial judge’s remittitur reducing them by eighty percent. As a result, Mrs. He and her husband will receive only a fraction of the damages awarded to them by the jury.2

I dissent because the majority, like the trial judge, has not paid proper deference to the judgment of the jury, which assessed the quantum of plaintiff’s pain and suffering and her husband’s loss of consortium after observing and hearing all the witnesses. Instead, the majority has substituted itself as the decisive juror, thus diminishing the right to a civil jury trial and breaking with the deferential principles of our remittitur jurisprudence.

I dissent because although the majority and trial judge pay lip service to the deferential standard of review governing remittitur, they do not “accept the evidence in the light most favorable to the plaintiff” in determining whether the damages award shocked the judicial conscience. See Johnson v. Scaccetti, 192 N.J. 256, 281, 927 A.2d 1269 (2007). Additionally, instead of reviewing the record de novo to determine the propriety of the remittitur — the *261correct standard of review — the majority first views the damages award through the subjective lens of the trial judge and then finds no abuse of discretion.

I dissent because the majority has transformed the shock-the-judicial-conscience standard — formerly an objective test to be applied de novo by this Court — into a subjective test, allowing a trial judge to overthrow a jury’s verdict based on the judge’s personal experiences as a trial attorney. Moreover, the majority defers to the judge’s comparisons to other cases that either were not sufficiently similar to the present case or were inadequately detailed on the record to allow for a fair comparison. Not only did the trial judge fail to articulate sound reasons — based on evidence in the record — for reducing Mrs. He’s award to $200,000, but both he and the majority have given no reason for reducing Mr. He’s award to $20,000.

I dissent because, under the banner of the judge’s “feel of the case,” the majority has allowed the judge’s courtroom observations of Mrs. He, in assessing the degree of her pain and suffering, to trump those of the jury whose ring-side seat placed it in a position to render its own judgment. Because the conclusions the judge drew from his observations are directly contradicted by evidence that the jury believed, the majority should defer to the trier of fact — the jury — not the judge.

Last, I dissent because the majority does not give sufficient weight to the presumption of validity of a jury verdict. The undeniable reality is that no two juries likely will award the exact same damages for pain and suffering, and therefore we must acknowledge that reasonable people may differ about any specific award falling within a wide range of acceptable outcomes. Within that acceptable range, even a seemingly high award should not be second-guessed by a court. So long as a rational jury could have arrived at the award — an award not so wide of the mark that it shocks the judicial conscience — it must not be disturbed. Here, the jury’s award was rationally based on the evidence and fell within the acceptable range for pain-and-suffering damages.

*262I now will detail how the majority has erred in depriving Mrs. He and her husband of the awards they rightfully received by a jury. Because today’s majority opinion cannot be reconciled with this Court’s remittitur jurisprudence, I first review the law of remittitur.

I.

An Overview of Remittitur Jurisprudence

A rational system of justice requires a judicial role in reviewing jury verdicts; nevertheless, “the authority to set aside damages awards on grounds of excessiveness is limited.” Jastram v. Kruse, 197 N.J. 216, 228, 962 A.2d 503 (2008) (internal quotation marks and citations omitted). The authors of our constitutional charters placed in the hands of the jury — not a judge — the power to decide civil disputes, great and small. See N.J. Const art. I, 119 (“The right of trial by jury shall remain inviolate.”); U.S. Const, amend. VII (“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved____”). “[A] civil plaintiff has a constitutional right to have a jury decide the merits and worth of her case.” Johnson, supra, 192 N.J. at 279, 927 A.2d 1269 (citation omitted). Underlying that constitutional right is a profound faith in the ability of “ordinary men and women of varying experiences and backgrounds, who serve as jurors,” to render a fair verdict and, if the plaintiff prevails, to award reasonable damages. See ibid.

Therefore, a jury’s verdict in a civil case, including an award of damages, is entitled to great deference by a reviewing court. In determining just compensation for an accident victim, a jury must be given wide latitude. See Baxter v. Fairmont Food Co., 74 N.J. 588, 598-99, 379 A.2d 225 (1977). That is particularly so in rendering an award of damages for pain and suffering because “there is no neat formula for translating pain and suffering into monetary compensation.” Johnson, supra, 192 N.J. at 280, 927 A.2d 1269. The quantification of pain-and-suffering damages is “not susceptible to scientific precision” and “necessarily requires a *263high degree of discretion.” Id. at 279-80, 927 A.2d 1269. Indeed, the language of the Civil Model Jury Charge governing the determination of pain-and-suffering damages reflects the broad discretion vested in the jury. See Model Jury Charges (Civil), Damages Charges-General: Disability, Impairment and Loss of the Enjoyment of Life, Pain and Suffering § 8.11E (Dec.1996).

“Although the measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances, reasonable people [will] differ on what is fair compensation in any particular case.” Johnson, supra, 192 N.J. at 280, 927 A.2d 1269 (citation and internal quotation marks omitted). It should be clear that even different juries hearing the same evidence might well return different awards of damages, all falling within a wide but reasonable range.

Judicial deference to a jury award of damages must be informed by the broad contours that define a just award of damages for pain and suffering. There is a broad acceptable range into which any particular award may fall. That is so even if the award is “high, [and] perhaps overly generous.” See id. at 283, 927 A.2d 1269; Jastram, supra, 197 N.J. at 235, 962 A.2d 503 (“To be sure ... this was a high verdict, but that does not mean it was excessive.”). So long as a damages award is “within the range of permissible jury decision^],” Baxter, supra, 74 N.J. at 604, 379 A.2d 225 — that is, a rational jury could have returned such an award, Jastram, supra, 197 N.J. at 235, 962 A.2d 503 — then the award must not be disturbed. Thus, a “judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion.” Baxter, supra, 74 N.J. at 598, 379 A.2d 225 (quoting Dolson v. Anastasia, 55 N.J. 2, 6, 258 A.2d 706 (1969)).

“[T]he presumption of correctness of a verdict by a jury” is informed by “centuries of common law merged into our constitutional framework.” Ibid. That presumption can only be overcome in cases where, “having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and *264convincingly appears that there was a miscarriage of justice.” See R. 4:49-l(a). We have articulated this standard in varying ways, all with the aim of ensuring that a verdict or damages award will be vacated only in exceptional circumstances. Accordingly, a trial judge should not order a new trial or remit a jury’s damages award unless it is so clearly disproportionate to a plaintiff’s pain and suffering and loss of enjoyment of life “that it may be said to shock the judicial conscience,” or to be “wide of the mark and pervaded by a sense of wrongness.” Johnson, supra, 192 N.J. at 281, 927 A.2d 1269 (internal quotation marks and citation omitted).

Judicial deference also requires that, in deciding whether to grant a remittitur, the court view the evidence in the light most favorable to the plaintiff. Ibid. So long as the evidence viewed in that light supports a damages award that could have been reached by a rational jury, a court is obliged to respect the jury’s judgment. Jastram, supra, 197 N.J. at 231, 235, 962 A.2d 503 (reversing Appellate Division, which remitted damages award, because it viewed evidence in light negative to plaintiff).

II.

The Evidence Viewed in the Light Most Favorable to Plaintiffs

The majority erred by not adhering to the basic principle of remittitur jurisprudence that a jury’s damages award is evaluated by viewing “the evidence in the light most favorable to the plaintiff.” See Johnson, supra, 192 N.J. at 281, 927 A.2d 1269. In that favorable light, Mrs. He appears in 2003 as a healthy and happily married woman, rearing two children and caring for her immigrant Chinese parents while gainfully employed as a housekeeper at a New York hotel. That year, at the age of forty-two, she was operating her car on a roadway when a vehicle traveling in the opposite direction driven by defendant Enilma Miller crossed over a double-yellow line, causing a head-on collision. Mrs. He was knocked unconscious and awoke in severe pain in her wrecked car. She suffered five herniated discs in her neck and back, which were compressing nerves and causing diminished *265strength and motion in her arms. Perhaps even more significantly, the herniated discs have left her in a permanent and chronic condition of pain. She endured a series of failed treatments, including cortisone injections to her spinal area that caused her to sweat profusely and her leg to swell.

She can no longer work, maintain her home, shop, care for her parents, have intimate relations with her husband, engage in routine activities with her children (such as ride a bicycle), or do other everyday tasks that were essential to her role as a mother and wife. All the while pain is her constant companion and 'will be for the rest of her life.3 The limitations placed on Mrs. He, including the inability to care for her aged parents, have made her feel “useless” as a human being.

The case of Mr. He reveals a husband who has lost the consortium of his wife, the primary caretaker of his home and his children, his sexual partner, and the woman with whom he enjoyed the most basic of life’s activities. He has had to curtail extended work-related trips in order to tend to his wife and handle domestic duties that were previously plaintiffs responsibility.

The trial judge’s stated reasons for remitting Mrs. He’s pain- and-suffering award to $200,000 and her husband’s loss-of-consortium award to $20,000 clearly show that he did not view all the evidence in the light most favorable to plaintiffs. Instead, he concentrated on weaknesses he perceived in Mrs. He’s case, an approach not consistent with a deferential standard of review. See Jastram, supra, 197 N.J. at 231, 962 A.2d 503. The judge considered it noteworthy that the “medical evidence demonstrated that surgery was not recommended by [Mrs. He’s] treating doctors.” That recommendation, however, had nothing to do with the seriousness of Mrs. He’s condition. The doctors concluded that *266she was not a good candidate for surgery, fearing that “a failed surgery” could mean a “lifetime [on] narcotic pain medication.”

Moreover, rather than focusing on plaintiffs’ expert’s ultimate conclusion that the disc herniations were the proximate cause of Mrs. He’s weakened condition and permanent suffering, the trial judge gave emphasis to her pre-existing degenerative disc disease. Also, instead of highlighting the extent and severity of Mrs. He’s injuries, the trial judge highlighted some mundane things she could still do: care for herself, perform light cleaning, and drive a car. Yet, the judge did not explain the limitations attached to those activities: Mrs. He can microwave a “single dish” for herself, but not cook for her family; she can do light dusting, but not clean her home; she can drive, but only for short distances.

All in all, the trial judge did not view the evidence in the light most favorable to plaintiffs as required under our remittitur jurisprudence.

III.

The Trial Judge’s “Feel of the Case" Is Not a Substitute for the Jury’s Factual Findings or This Court’s De Novo Review of the Record

An appellate court reviewing a remittitur engages in a de novo review of the record, applying the same standards governing the trial court and paying no special deference to the trial judge’s findings except for those that touch on his or her “feel of the case.” Johnson, supra, 192 N.J. at 282, 927 A.2d 1269; Baxter, supra, 74 N.J. at 596, 379 A.2d 225. Even then, some caution is required because ultimately it is the jury’s “feel of the case” that controls the outcome of every case.

A judge’s “feel of the case” should not be the basis for overthrowing a jury’s credibility determinations and findings of fact. The trial judge placed importance on his observations that “[Mrs. He’s] gait and appearance did not appear to be in any way affected by her injuries” and that “there were not outward signs *267of pain and discomfort observable during the course of trial.” However, had the judge applied the most-favorable-evidence standard, he would have recognized that, at trial, Mrs. He was taking a powerful, narcotic pain medication. That evidence alone should have provided a sufficient explanation for the judge’s failure to discern “outward signs of pain” in the courtroom. Moreover, the jury had a clear view of Mrs. He through days of trial. As we noted in Baxter, the judge’s “feel of the case” based on courtroom observations of a plaintiff is entitled to minimal weight when the jury has had an “equal opportunity” to observe the plaintiff. 74 N.J. at 600-01, 379 A.2d 225. As in Baxter, there is no basis to conclude that Mrs. He was malingering or has exaggerated her suffering. See ibid.

Certainly, a judge’s “feel of the case” is entitled to some weight. But when the judge’s observations are directly contradicted by evidence that the jury apparently believed, an appellate court should not reflexively defer to the invocation of “the feel of the case,” as the majority did here. See, e.g., Johnson, supra, 192 N.J. at 283, 927 A.2d 1269 (finding that trial court’s indication that plaintiff showed no signs of pain during trial was contradicted by its finding that her life outside of court was one of “constant pain”).

Today, the majority exalts the trial judge’s “feel of the case” above the jury’s duty to decide for itself the quantum of damages in a civil case and, at the same time, undermines this Court’s obligation to review remittitur motions de novo — that is, based on the objective evidence of record. See ante at 254-56, 24 A.3d at 265-66.

IV.

The Trial Judge’s Subjective, Personal Experiences Are Not Germane to the Shock-the-Conscience Standard

When a reviewing court considers whether a particular damages award shocks the judicial conscience, the test — however difficult to *268apply — must be an objective one. The shock-the-conscienee standard does not depend on the unique personal experiences of the particular judge who is presiding over the case. This is a point Chief Justice Hughes made clear in Baxter:

[A]U judges, whether trial or appellate, are human and ... the judgment of each is inevitably affected by subjective prejudices or predispositions relating to properties or specific tendencies of the individual mind, as distinguished from general or universal experience. These natural subjective inclinations derive from the particular background or experience of the individual judge, whether from tenure on the bench in examining or recalling other cases, from previous activity in law practice in diverse fields or, for that matter, from any human experience, such as a youthful background of poverty or wealth or the like. Such individuality of approach extends of course to the field of admeasuring damages flowing from injuries caused by negligence, as in the present case, or other wrong. It is for the merging of such individualized propensities of mind into an amalgam of common judicial experience related to the doing of justice that judges are admonished to resist the natural temptation to substitute their judgment for that of the jury.
[ 74 N.J. at 596-97, 379 A.2d 225.]

Thus, however much trial and appellate judges are affected by their subjective prejudices and predispositions and life experiences, those “individualized propensities of mind” must somehow be merged into “an amalgam of common judicial experience related to the doing of justice.” Ibid. To be sure, this is not an easy undertaking, but “judges are admonished to resist the natural temptation to substitute their judgment for that of the jury.” Ibid, (citation omitted).

A judge’s unspecified personal experiences — even as a certified civil trial attorney — cannot serve as the basis for a remittitur. Yet the majority endorses just this approach in contravention of Baxter. The majority holds that the trial judge’s experiences as a personal-injury litigator in the Morris County region properly informed his decision to grant a remittitur. If that is the new governing standard, then the members of this Court, who review de novo the propriety of the remittitur, would be able to substitute their own personal experiences in private practice and on the bench in determining whether the damages award shocks their personal judicial consciences. The majority states that “no two judges are identical.” Ante at 253, 24 A.3d at 264. The implica*269tion is that the grant or denial of a remittitur may depend on the sheer happenstance of whom a litigant draws as a trial or appellate judge.

It is not the judge’s personal conscience but the judicial conscience that matters. Thus only when the damages award “is so clearly disproportionate to the injury,” so “wide of the mark,” so “pervaded by a sense of wrongness,” that it “shock[s] the judicial conscience,” should a judge overturn a jury’s damages award. See Johnson, supra, 192 N.J. at 281, 927 A.2d 1269 (emphasis added) (internal quotations and citations omitted).

To turn the outcome of a remittitur motion on the unspecified and unarticulated personal experiences of a judge will truly give the appearance that the judge is the final “and decisive juror.” See Dolson, supra, 55 N.J. at 6, 258 A.2d 706. Moreover, if the court intends to rely on evidence outside of that record, a party has a fundamental right to notice and an opportunity to be heard, including an opportunity to object and present contrary evidence. See First Resolution Inv. Corp. v. Seker, 171 N.J. 502, 514, 795 A.2d 868 (2002) (“[DJue process [requires] notice and an opportunity to be heard.” (citation and internal quotation marks omitted)).

V.

Comparisons to Dissimilar Cases Should Not Be the Basis for Overturning a Jury’s Award

A court granting a remittitur “must articulate its reasons for reducing a damages award by reference to the trial record.” Johnson, supra, 192 N.J. at 281, 927 A.2d 1269. We have held that “ [although the court may rely on its knowledge of other injury verdicts, if it does so, it must give a factual analysis of how the award is different or similar to others to which it is compared.” Ibid, (internal citation omitted); see Jastram, supra, 197 N.J. at 233-34, 962 A.2d 503 (same).

The trial judge’s inapt comparisons to other cases were not the “complete and searching analysis” we had in mind when we *270remanded for “a factual analysis of how [plaintiffs] award is different or similar to others to which it is compared.” See He v. Miller, 199 N.J. 538, 539, 973 A.2d 943 (2009) (quotation omitted); see also Jastram, supra, 197 N.J. at 234, 962 A.2d 503 (rejecting cursory comparison of plaintiffs case to “thousands of garden-variety lumbar strains and sprains that pass through our courts every year” (quotation omitted)).

The trial judge began by comparing the present ease to two personal-injury cases tried to a jury over which he presided just two months after he came onto the bench. In one, Morales v. Keith, the plaintiff, a thirty-four-year-old male, was involved in an automobile accident and later diagnosed with disc herniations and carpal-tunnel syndrome for which he received treatment, including carpal-tunnel surgery. According to the plaintiffs testimony, his lifestyle was “affected”; he experienced “pain and discomfort in his neck and back”; he could not work as many hours as he had before the accident; he could not sit or drive for extended periods of time; and his recreational activities were curtailed. The jury awarded the plaintiff only $2,500. Nevertheless, the parties consented to an additional $46,022 in damages.

In' this case, the Appellate Division suggested that the $2,500 award in Morales “might be more likely to suggest the verdict was shockingly low, as revealed by the parties’ stipulation that increased the award to nearly $50,000.” He v. Miller, 411 N.J.Super. 15, 29, 983 A.2d 1164 (App.Div.2009). The generalized description of the impact of the injuries on the plaintiff in Morales do not compare to the detailed testimony in the present ease describing how this plaintiffs injuries have utterly destroyed the life she had known, taking from her not only her enjoyment of life but also her sense of self-worth. Importantly, no one can tell whether the jury credited the testimony of the plaintiff in Morales. The low verdict there may well have reflected the jury’s disbelief of that plaintiffs account of the nature and extent of his injuries. Here, the seemingly high verdict may be nothing more than the jury’s full acceptance of Mrs. He’s and her family’s *271description of the devastating impact of her injuries on her unique life. See Ostrowski v. Azzara, 111 N.J. 429, 438, 545 A.2d 148 (1988) (“[a] defendant must take [his] plaintiff as he finds [her]”) (internal quotation marks and citation omitted).

The second comparable case over which the trial judge presided, Ziza v. Romanelli, involved a fifty-five-year-old female who “sustained a hairline fracture of her ankle and torn ligaments” from a fall-down accident. That plaintiff underwent surgery for the reconstruction of ankle ligaments, received cortisone shots and physical therapy, and had a spinal-cord stimulator implanted to relieve her pain. Her lifestyle and marital relationship were “affected” by the injuries and she was unable to continue to work in the family bakery business. The plaintiff received “a gross award of $200,000 and her husband $25,000” on his loss-of-consortium claim.

The first apparent difference between the two cases is that in Ziza the plaintiff suffered a serious ankle injury and in this case Mrs. He suffered a serious spinal injury. Also the plaintiff in Ziza was thirteen years older than Mrs. He at the time they suffered their respective injuries. Unlike the case of Mrs. He, there is no indication that the plaintiff in Ziza was rendered totally unemployable as a result of her ankle injury. Although the trial judge relates that the lifestyle and marital relationship of the plaintiff in Ziza were “affected,” we do not know how or to what degree. On the other hand, we do know that forty-two-year-old Mrs. He could no longer have sexual relations with her husband as a result of her injuries and suffered a regime of constant, debilitating pain. Based on the paucity of information provided by the trial judge, it is impossible to tell whether the Ziza award falls inside a spectrum of possible reasonable awards, and, if so, whether it is at the low or high end of that spectrum. Whatever similarities can be drawn between the two cases, there are a multitude of differences and too little is known about the Ziza case.

Moreover, the trial judge here made a superficial comparative analysis to six other cases over which he did not preside. All six *272eases involved plaintiffs who suffered disc herniations, and the range of awards spanned from $40,000 to $200,000. The judge was “provided with limited factual details” about those cases by defendant. From those cases, we can glean the general nature of the injuries, but know nothing about the impact of those injuries on the lives of those plaintiffs — whether the plaintiffs were rendered unemployable, whether they would have to endure a lifetime of pain and suffering, the restrictions on their lives, the degree of loss of enjoyment of life, and much more. The lack of adequate data about those six cases negates any meaningful comparison to the case of Mrs. He and her husband.

After approving those strained comparisons, the majority faults Mrs. He for not having offered any comparable cases of her own. See ante at 257, 24 A.3d at 267. Because a jury verdict is presumed to be correct, Mrs. He was under no obligation to cite to any cases to justify the award returned by a jury that had heard her case. Requiring a plaintiff to offer comparable awards undermines the very “presumption of correctness” that had formerly applied to a jury verdict. See Baxter, supra, 74 N.J. at 598, 379 A.2d 225.

Last, the trial judge did not allude to any personal experience or comparable case to explain the remittitur of Mr. He’s loss-of-consortium damages award. The majority provides no explanation either.

VI.

The Jury Award Does Not Shock the Judicial Conscience

The high bar that insulates damages awards from routine judicial second-guessing — the manifest-miscarriage-of-justice standard — does not require a comparative-damages-award approach. It should be remembered that cases calling for a new trial or a remittitur or additur should starkly stand out based on the evidence of record.

*273A grossly excessive or grossly inadequate damages award will be obvious in many cases; that is, it will shock the judicial conscience. In such a case, after a judge canvasses the record, viewing the evidence in the light most favorable to the plaintiff, it should be clear that the “verdict is terribly wrong.” Baxter, supra, 74 N.J. at 598, 379 A.2d 225. The “pervading sense of ‘wrongness’ needed to justify” overthrowing a jury verdict may be “difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience,” but it requires that a judge possess a “definite conviction” that the jury “went so wide of the mark” that the award shocks the judicial conscience. Id. at 599, 379 A.2d 225 (internal quotation omitted).

Recently, we had occasion to vacate a jury’s damages award based on our de novo review of the record. In Besler v. Board of Education of West Windsor-Plainsboro Regional School District, 201 N.J. 544, 573-75, 993 A.2d 805 (2010), the plaintiff was gaveled down at a board of education meeting and not permitted to complete a statement critical of the board and school officials. We upheld the jury’s verdict that the board violated the plaintiff’s First Amendment rights. Id. at 555, 993 A.2d 805. But the only support for the jury’s $100,000 pain-and-suffering award was testimony that the plaintiff “was ‘completely embarrassed,’ ‘shocked,’ ‘bewildered,’ ‘sick to [his] stomach,’ and felt like a leper.” Id. at 578, 993 A.2d 805 (alteration in original). The plaintiff did “not claim that the incident caused nightmares or sleeplessness, or impaired his reputation, his relations with others, or his ability to function,” and therefore the $100,000 damages award was based, “at best, [on] transient emotional distress.” Ibid. We concluded that the damages award was “so clearly excessive that it constituted] ‘a miscarriage of justice,’” and remanded to the trial court to conduct a remittitur hearing. Id. at 580-81, 993 A.2d 805. The Besler award was not a close call where “the tie must go to the jury.” See Johnson, supra, 192 N.J. at 283, 927 A.2d 1269.

*274On the other hand, we have upheld pain-and-suffering damages awards, even when high, which could have been reached by a rational jury and which were not so wide of the mark that they constituted a manifest miscarriage of justice. See, e.g., Jastram, supra, 197 N.J. at 220, 234-35, 962 A.2d 503 (upholding $500,000 pain-and-suffering award); Johnson, supra, 192 N.J. at 261, 283-84, 927 A.2d 1269 (upholding $2,500,000 pain-and-suffering award and $500,000 loss-of-consortium award).

The jury’s awards of $1,000,000 in pain-and-suffering damages to Mrs. He and $100,000 for loss of consortium to her husband— however seemingly high — fall within a permissible range. The awards are grounded in the evidence and could have been reached by a rational jury. The majority did not independently determine for itself — de novo — whether the damages awards were manifestly excessive, that is, shocked the judicial conscience. Instead, turning the standard of review on its head, the majority determines that there was in “this record ample support for the trial court’s order.” See ante at 259, 24 A.3d at 268; see also ante at 255, 24 A.3d at 265 (“appellate panels [must] recognize that their mere disagreement with [trial court’s] evaluation will not suffice”). Again, it must be noted that neither the trial judge nor the majority have given any explanation for the reduction of Mr. He’s loss-of-consortium award.

VII.

Conclusion

A review of the evidence in the light most favorable to plaintiffs shows that the damages awards were not grossly excessive, not pervaded by such a sense of wrongness that they shock the judicial conscience. The awards do not constitute a manifest miscarriage of justice necessitating a new trial or a remittitur. I would affirm the Appellate Division, which overturned the trial judge’s remittitur and reinstated the damages awarded by the jury. I therefore respectfully dissent.

*275For reversal and remandment — Justices RIVERA-SOTO, HOENS and WEFING — 3.

For affirmance — Chief Justice RABNER and Justice ALBIN— 2.

Not Participating — Justices LONG and LaVECCHIA — 2.

The jury also awarded Mrs. He $110,000 in past lost wages and $500,000 in future lost wages. Those awards are not at issue.

That is if Mrs. He and her husband accept the remittitur. They are permitted to reject the remittitur and request a new trial on damages. See Johnson v. Scaccetti, 192 N.J. 256, 280-81, 927 A.2d 1269 (2007).

Plaintiffs life expectancy was 37.4 years from the date of her accident when she was 42 years old. Life Expectancy Table, Pressler & Verniero, Current N.J. Court Rules, Appendix I at 2399 (2011).